Monday, March 7, 2011

License Denial or Discipline? No. 5 of the Top Ten Essential Tasks to Do Now: Prepare Your Rehabilitation Evidence

This post discusses Task No. 5 of the “Top Ten Essential Tasks for Appealing a License Denial or Defending Against License Discipline: Prepare Your Rehabilitation Evidence.”

After decades of practice in the field of California administrative law, the partners of License Advocates Law Group LLP have seen, time after time, that every occupational and professional licensing case can be strengthened by some very straightforward actions by the licensee or denied applicant even after the initial denial of a license or after disciplinary charges have been brought by the State. Over the next weeks, this blog will continue to identify, explain and discuss the “Top Ten Essential Tasks for Appealing a License Denial or Defending Against License Discipline.”

Prior installments of the “Top 10 Essential Tasks” are available in the archive of our blog. The first all-important installment of this series, Task No. 1, is available in the August Archive here. Task No. 2, also in the August Archive, is here. Task No. 3 is set forth in the September Archive here. Task No. 4, “Preparing Your Character Evidence” is found here.

In the years of administrative law practice by the attorneys of License Advocates Law Group LLP we have seen that most cases of license denial or discipline are based on a record of criminal acts underlying the denial or proposal for discipline. In many cases, the offense on the record is very old (a recent license denial based on 39-year old felony conviction) or it was acquired as a juvenile. In other instances, the conviction is based on almost ludicrous facts (a burglary conviction based on entry into one’s own work-space after hours for purposes of using office equipment to make a single photocopy of personal material). But all cases of license denial or discipline rest ultimately on the ability of the licensee or license applicant to make a compelling showing at or before an evidentiary hearing that one is fit and worthy of the privilege of doing licensed work.

Notwithstanding the many reasons that a license denial or discipline of a license can seem an overbearing and oppressive exercise of State regulatory powers, under California law State licensing agencies are entitled to deny any application for license, or to revoke or otherwise discipline a license, on the grounds of a criminal conviction if the acts underlying the conviction are determined by the State to be acts that are inconsistent with the functions, qualifications and duties of the licensed occupation. Even where there has been no conviction, or no prosecution, the State may rely on evidence of improper acts to deny or discipline an occupational or professional license. By obtaining a court order that improves or recasts the criminal history, or by resolving pending matters pertinent to financial and legal obligations, these matters can be removed from the consideration and evaluation of licensing officials and no longer available as a basis for unfavorable licensing decisions. For these reasons, clearing up prior criminal history and other pending lapsed financial and legal obligations is a critical task during the months preceding the license hearing.

Clearing or improving the record of prior criminal convictions, where possible, is an important pre-requisite to making the strongest and most effective showing at the license hearing. But it is also an important precursor to successful negotiations with California licensing agencies. Even where available procedures result in only partial revisions of the conviction record, it is important that the licensee or license applicant demonstrate seriousness of purpose by pursuing all available legal measures. Where a record-clearing process is available, and the eligible license applicant or licensee has not petitioned the court for the benefit, the licensing agency often interprets that failure as one of indifference to the outcome of the licensing matter.

Significant records-cleaning procedures will usually require the services of an attorney. Most criminal defense attorneys are experienced in these legal processes, and all specialized licensing attorneys can and should include these measures as part of the agreement for services attendant to appealing a denial of a license application or defending against license discipline. The focus of this discussion, then, is not how to do these things yourself, without an attorney, but what processes you can expect your attorney to evaluate for applicability and to undertake where you are eligible.
First, let go of an old myth. It is not true that only felony convictions matter in obtaining or preserving a California professional or occupational license. Not only are misdemeanors grounds for denial or discipline by State licensing agencies, even infractions can be a basis for State action against a license. In fact, even where there has been no criminal prosecution or conviction, State licensing agencies are allowed by California law to consider acts — acts not pertaining in the slightest to work under the auspices of the license — that are inconsistent with the functions, duties and qualifications of a licensee.

A recent example from a case defended by License Advocates Law Group LLP may be instructive. Our client was a California-licensed architect with an unblemished criminal history and a solid record of outstanding work in the profession and in his employment of over thirty years. When he sold his personal residence, the buyer decided within a few days of taking possession of the home that our client had failed to disclose a defect in the heating-cooling system. The buyer made a complaint to the State licensing agency, alleging that our client’s failure to disclose the defect was dishonest and inconsistent with the requirements of the laws pertaining to real estate transactions. The architect’s licensing agency was poised to commence a formal disciplinary investigation, potentially leading to revocation or suspension of our client’s license, even though the acts in question had nothing to do with our client’s performance in his licensed work, and even though there was no criminal prosecution or conviction arising from the conduct complained of. (The case was amicably resolved before any disciplinary investigation ensued.)

Criminal prosecutions and records of conviction are the primary means by which State licensing agencies learn of acts that may be considered unacceptable — improper — for licensees. So applicants and licensees need to utilize all that the law allows in order to
maintain “clean” records of criminal history.

One of the many advantages in the extended period of time between asking for and obtaining a fair hearing to appeal a license denial or defend against license discipline, is that those months are usually sufficient to initiate and complete the process of obtaining formal court orders that revise a problematic criminal conviction record. Court-ordered revision of a criminal history can be determinative in establishing rehabilitation after conviction, because the licensing agency is ordinarily bound by the terms of the court’s order. So, for example, if a Court issues a Certificate of Rehabilitation, the licensing agency cannot use the conviction to which the Certificate applies in denying or disciplining a license. The single exception to this principle is expungement under Penal Code Sections 1203 and 1203.4. By the express terms of those statutes, State licensing agencies are allowed to consider “expunged” convictions and the circumstances underlying those convictions in determining the fitness of licensees and license applicants.

Most of the legal processes for improving criminal records involve petitioning the Superior Court, or the court in which the applicant or licensee was convicted, for an Order. Court orders are potentially available to strengthen licensing applications and defenses in several different and sometimes overlapping respects.

1.    Dismissal of prior misdemeanor convictions and an early termination of current probation.
2.    Reduction of a felony conviction to a misdemeanor, where the charge of conviction is an alternative felony-misdemeanor.
3.    Sealing of prior juvenile criminal history.
4.    Issuance of a Certificate of Rehabilitation for any felony conviction more than five years old that cannot be reduced to a misdemeanor.

Other record-cleaning measures do not require action by a court:

5.    Resolve outstanding or lapsed financial obligations.
6.    Clear up old warrants, even traffic, and unpaid fines, penalty assessments, and other outstanding criminal matters.
7.    Complete and satisfy all remaining terms and conditions of any probation or parole, including orders for restitution, and obtain a written declaration of completion from monitoring officials.
8.    Satisfy or reach a formal compromise of all outstanding civil judgments (including any relating to spousal support, child support or asset distribution attendant to marital dissolution).
9.    Resolve pending cases for civil damages and administrative complaints based on allegations of misconduct.

For some applicants and licensees, the records-cleaning processes in California law will be unavailing. For example, a juvenile conviction for a violent crime involving the use of a firearm is generally not “sealable” under California law. But other remedies may apply to the same factual situation. For example, if an unsealable juvenile conviction resulted in a sentence to the custody of the State Department of Corrections, the offender may be eligible for a Certificate of Rehabilitation. The multiplicity of potential record-cleaning measures, and their patchwork of eligibility requirements, virtually demand the skill and experience of an attorney to effectively mine the possibilities for the measure that can best meet the needs of the applicant or licensee.

Of course, the need to first clean up the criminal record can add to the costs and time of appealing a denial of license or defending against license discipline. Still, the math will always demonstrate that the costs of obtaining or preserving an occupational license are always offset in a relatively short period of time by the enhanced earning power under the license, which can continue indefinitely. For these reasons, then, cleaning up any prior criminal history, or discernible history of civil claims or lapsed financial obligations, must be considered a Critical Task in defending or obtaining a professional or occupational license in California and should be accomplished before the matter is submitted to an Administrative Law Judge.

Christine C. McCall, License Advocates Law Group LLP   

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